Q. Ma'am, based on what you testified to earlier
this morning, it's clear the testimony you intend to offer this
afternoon is going to be based in large part on statements made
by certain intelligent design proponents, is that accurate?

A. It's based on my consultation of their writings
and things about them in which they are quoted.

Q. Ma'am, do you agree with Dr. Miller's testimony
that not everything a scientists says is science?

A. Scientists make lots of statements sometimes
when they're speaking not as scientists, but as just people.

Q. In the testimony you intend to offer this
morning and this afternoon, ma'am, how will this court know when
you're referring to scientific claims made by intelligent design
and phil osophi cal or theol ogi cal claims made intelligent
design proponents?

A. That sounds like it would depend on the
question. The question would have to specify and then I would
have to specify.

Q. Isn't it true in your report you've made no
effort to distinguish these sorts of claims?

Q. Well, isn't it clear in your report, and I'm
assuming then your subsequent testimony today, does not make
clear the distinction between religious motivations of some
intelligent design proponents, the religious implications of
intelligent design, and intelligent design as science, isn't that
correct?

A. I look at the nature of intelligent design in
the intelligent design movement. That includes a number of
things. It includes most basically the substance of the movement
itself, the essence of what it is, but also involves motivations
of the people who are carrying out this movement and the goals
that they have. So I look at all of it, most basically the nature
of intelligent design and the movement that's being used to carry
it out.

Q. But you don't address the scientific claims of
intelligent design, for example irreducible complexity or complex
specified information, is that correct?

Q. So is it accurate to say your focus is on the
philosophical and theological claims made by intelligent
design proponents?

A. Yes. If I may say, in my book we do look at the
scientific claim. My co-author is a scientist, so I have some
source of expertise to draw from whenever I need to address that,
but that's not my primary area.

THE COURT: All right. So you object to the
expert's testimony for the purposes stated by Mr. Rothschild, and
we stated and restated those purposes. So there's no need to do
that at this point. I'll allow you to expand on that argument if
you like.

MR. MUISE: Your Honor, this last question that he
just proposed to her she said during the voir dire when I asked
her if she had any expertise in religion, she said no. She has
apparently tracked the nature and the history of this so-called
intelligent design movement. She can't address the scientific
claims of this. The issue at the heart of this case is whether or
not intelligent design is science.

MR. MUISE: Well, Your Honor, I think their claim
that it's not science. She's made no efforts to address the
science component of it, because she can't. She has no expertise.
She has focused on the philosophical and theological claims of
proponents of intelligent design.

THE COURT: Well, the problem with that is that it
is an issue to be sure, but another issue, and I understand that
they work hand in glove in some cases, these issues, is the
religious underpinnings of, or the alleged religious
underpinnings of the intelligent design movement as cast by the
witness. Why isn't she competent to testify as to that?

MR. MUISE: Your Honor, again the religious
underpinnings of William Dembski, who's a theologian and a
philosopher in addition to a mathematician, is no more relevant
than the interrelated underpinnings of Richard Dawkins to say
whether or not evolution is --

THE COURT: I might agree with that, but that goes
to what I said earlier, Mr. Muise, which is that you may have
objections as they relate to specific portions of her testimony,
and I restate, because I think it needs to be restated, that
nothing that I do in terms of admitting this expert, assuming
that I admit her, would prevent you from doing that. But to parse
out portions of a report that may be objectionable in that way
doesn't help you in terms of her admissibility generally as an
expert. We're talking about two different things. So what other
arguments do you want to make on that point?

MR. MUISE: Again, Your Honor, as indicated from
the last question, just the interrelationship, there's no way to
separate out those objectionable claims from what she's going to
be testifying to. That is in part and parcel of what she's going
to be opining is relying on those sorts of objectionable claims,
these philosophical and theological statements of proponents. And
so the fact that they're so intertwined, there's no way that this
court or even us sitting here when she makes a particular claim
can parse out what is the basis, the material that she's relying
on to make that claim, and those materials are objectionable and
undermine the reliability, and if I may just make one other -
-

THE COURT: Well, the materials themselves may
constitute hearsay. We've already been down that path.
703
doesn't exclude hearsay. In an effort to be fair I said the
materials had to be brought in in part so that we can assure
ourselves that you're given the fair opportunity to discern
whether or not, and I'm fairly certain you did this beforehand,
and so it's principally for my benefit to see whether or not the
statements are taken out of context, which would be one way to
measure that, particularly when you're parsing out, using that
word again, a particular statement, and I'm perfectly willing to
do that on an objection from you. But to say that this witness,
who is engaged in a scholarly exercise and has produced a
published work, that she can't testify generally subject to well
placed objection on the history of intelligent design as it
arose, I'm having difficulty seeing why she can't.

MR. MUISE: And just a couple of more points to
that, Your Honor. With regard to the context, that was the point
of some of my last questions, because if the context is a philosophical or a
theological claim made by a proponent, that is
the context that makes it irrelevant, and that's the point.

THE COURT: Well, and it has to be tied to the --
we're talking in the abstract. A mere statement of faith by a
particular individual standing alone, not tied in some way to an
analysis of the, not just an analysis but not tied to that
individual's work or works, treatises, published works as they
relate to intelligent design, that may be indeed objectionable.
I'm not preventing that. And this report may have instances of
that. But again I don't think it disqualifies the witness as an
expert.

MR. MUISE: Just two last -- well, it's related,
but one last point I guess, Your Honor, is that as she testified
there's no evidence that anyone in the school board knew anything
about this
Wedge Document which forms the foundation of her
opinion, nor that any person on the Dover area school district
was aware of or operating under the guidance of this
conspiratorial intelligent design movement that's somewhere
operating out there.

THE COURT: But that's weight and relevance. That's
not expert qualifications, is it?

MR. MUISE: Well, again, Your Honor, I think it's
more than just the qualifications. There's a reliability question
that's associated with this
703 --

THE COURT: No, the purpose then would be effect, I
think, from the plaintiff's standpoint. Having admitted the
testimony, you of course can argue that for the effect prong
perhaps, for example, and not the purpose prong, and the failure
to tie the matters testified to to the individual school board
members makes the testimony irrelevant and that it shouldn't be
considered by the court. But we're not there, and we're not in
your case and I don't think that that goes to qualifications. So
you're morphing your qualifications argument into a relevancy
argument, and I don't think that's appropriate at this point.

THE COURT: I'm going to admit the expert then,
again subject to timely objections by the defense, for the
purpose stated by Mr. Rothschild, which is an expert on
methodological naturalism and the history and nature of the
intelligent design movement, and Mr. Rothschild, you may
proceed.

Q. The district in this case has argued that
creationism is limited to a literal interpretation of the account
of Genesis from the Old Testament of the Bible. Do you agree that
that's a proper definition of creationism?

A. Creationists themselves recognize variations
among themselves. They recognize the young earth position. They
recognize the old earth position. This is quite well known among
creationists themselves.

Q. Do you have an opinion about whether
intelligent design is religious in nature?

MR. MUISE: Again, Your Honor, it goes to the
content. This is not a claim made by, a scientific claim. It's at
best a philosophical theological claim that's made by somebody
that she purports to be an intelligent design proponent, and as
she said in direct testimony Phillip Johnson is a lawyer. He's
not a scientist.

THE COURT: We'll have to take it in the context of
the entire passage and presume that, meaning I have to see it on
the screen, you're going to have to give me the exhibit.

A. Yes. "My colleagues and I speak of theistic
realism, or sometimes mere creation, as the defining concept of
our movement. This means that we affirm that God is objectively
real as creator, and that the reality of God is tangibly recorded
in evidence accessible to science, particularly in biology."

Q. And based on your reading of this article, what
is the movement that Mr. Johnson was referring to?

MR. MUISE: Your Honor, we're going to object to
any testimony related to any court cases or prior decisions.
She's not an attorney in this case. There's only one legal expert
in this courtroom, and it's the judge, and it's not this
witness.

THE COURT: Of course that remains to be seen. What
do you have to say about that?

THE COURT: Well, to the extent that Mr. Muise
interposes a protective objection as it may relate to a legal
interpretation of the case you'll not be able to go there, and
I'll sustain the objection on that basis. The questions up to
this point with respect to the existence of the case, the naming
of the case, are not objectionable, but I understand I think the
basis of your objection is that she can't legally interpret the
case. I'll hear another objection, I'll allow you a continuing
objection in that vein, but we haven't gotten to that point yet.
You may proceed.

THE COURT: No, I'll sustain that objection. I
think that's problematic, and I think furthermore the court is
capable of understanding that case. So it's probably a needless
question anyway. So let's move on.

MR. ROTHSCHILD: Matt, could you go to the first,
could you actually highlight the heading so we can see clearly
that that is an affidavit? I think you need to go down a little
-- there we go.

MR. MUISE: We object on the basis of hearsay again
for any testimony relating to this affidavit, this out of court
statement issued by Mr. Kenyon.

THE COURT: Again you're going to have to do better
than a basic hearsay objection, and it's also an affidavit that
appears to have been part of the record papers in that case. Now,
is it unreliable? Do you have any reason to doubt its
voracity?

MR. MUISE: Well, Your Honor, again with regard to
it's an affidavit given in a court case that's not addressing the
issue of intelligent design. Again she's relying on these
statements to arrive at an opinion that's not substantiated by,
you know, by weaving this web of these assorted statements
throughout the course of the testimony. We're going to continue
to object to any of the statements that keep coming up, Your
Honor, and I'll ask for a standing objection on that, but --

THE COURT: Well, I don't think a standing
objection is going to work for you because you may have
particular things you want to say about it. You have to do what
you have to do. I'll overrule the objection.

MR. ROTHSCHILD: And, Your Honor, we re not
introducing this for the truth of the matter asserted. We're
introducing it for these are Dr. Kenyon s statement, and I'd just
like to add for the record the first exhibit that received this
kind of objection, Exhibit 328, is already in evidence. It came
in through Dr. Pennock, and I'm not sure why Dr. Forrest is being
treated differently than other expert witnesses in this case.
Could you go to the first highlighted passage, Matt?

A. That statement is important because it reflects
the definition in Pandas.

Q. And when you say the definition in Pandas what
is the term that's defined the Pandas?

A. The term in Pandas is intelligent design. It's
pretty much the same definition here that he's giving for
creation science.

Q. And we're going to look at some of that
language in Pandas later, but why don't we go on to the next
highlighted passage. Why don't you go ahead and read that.

A. "Creation science does not include as essential
parts the concept of catastrophism, a worldwide flood, a recent
inception of the earth or life from nothingness, ex nihilo, the
concept of time, or any concepts from Genesis or other religious
texts."

A. "Sole alternative to scientific explanation, it
is not only my professional opinion, but that of many leading
evolutionists scientists at present and in the past, that creati
on science and evolution are the sole scientific alternative,
scientific explanation, although each includes a variety of
approaches. Either plants and animals evolved from one or more
initial living form, biological evolution, or they were created,
biological creation."

A. That's significant here because in 1986 when
Dr. Kenyon wrote this he was also working on Pandas the same
year, and the two model approach means that if the idea of
evolution is undermined, that leaves creation science by default.
It also indicates that since he was working Pandas and that book
speaks as an intelligent design theorist, he doesn't see any
significant distinction between the two, between creation science
and intelligent design.

Q. I'd like to talk now about the writing of the
book Of Pandas and People. When was the book first published?

Q. Matt, could you pull up the timeline and place
the Edwards decision and
Mr. Kenyon's affidavit,
Dr. Kenyon's
affidavit on the timeline, and then could you also put up the two
published versions of Pandas in 1989 and in 1993? What
organization created Of Pandas and People?

Q. Matt, could you go to the highlighted passage?
And Dr. Forrest, could you read the highlighted text under
Articles?

A. Yes, this is Article 5, "The purposes for which
the corporation is formed are, 1) the primary purpose is both
religious and educational, which includes, but is not limited to,
proclaiming, publishing, preaching, teaching, promoting,
broadcasting, disseminating, and otherwise making known the
Christian gospel and understanding of the Bible and the light it
sheds on the academic and social issues of our day."

MR. MUISE: Your Honor, this is a document that
self-authenticates. I mean, it's fine that he can read that off
the document, but there's no way to authenticate that this is in
fact that document.

THE COURT: Well, it doesn't self authenticate, but
that's not the issue. You know, in a
703 analysis it's part of an
expert report. I think the question is whether you don't think
it's authentic, not whether it self-authenticates, because we're
not in a strictly, or in a strict hearsay inquiry. We've been
down this road before, hearsay is admissible. So the
self-authenticating part is not it. Now, if you tell me that you
don't think this is real, if you tell you think it was altered,
if you tell me that there's no way for you to know, I might
consider that. But you had the report, you've had the ability to
check, presumably you've had the ability to access FTE documents.
So if it's something other than it doesn't self-authenticate then
I'm going to overrule the objection.

MR. MUISE: Well, that was in response to just
showing his signature. My objection is the hearsay objection that
we stated at the front, at the beginning of this testimony. It is
the context. This is a philosophical, a theological claim, not a
scientific claim.

THE COURT: Well, it is a newsletter to close this
loop, but it's a newsletter that appears to the court to have
been published by The Foundation For Thought and Ethics by Mr.
Buell. The court knows what Mr. Buell's position is, and Mr.
Thaxton. They are, it is not a matter of controversy that they
are the publishers of the book Of Pandas and People. It is a work
that is roughly contemporaneous with I think the first publishing
or at or around the time of the publishing of the book, or at
least if predates it, it doesn't predate it by much, I'm not
certain, so I'll overrule the objection.

MR. ROTHSCHILD: Your Honor, one more thing. Mr.
Muise is objecting because these are philosophical and
theological statements, and I think most of what Dr. Forrest is
going to testify about surely are, and it is the plaintiff's
position that intelligent design is at its core a philosophical,
theological, religious statement. So that, I mean, that's what
she's here to testify about, so it's not going to be surprising
if those kinds of statements are, you know, the core of Dr.
Forrest's testimony today.

THE COURT: Well, if you said that to get Mr. Muise
to stop making continued objections, you're probably going to
fail. So let's move on.

Q. Dr. Forrest, if you could read that and
explainwhy it's significant to the issue of the foundation
mission or agenda.

A. Yes. "Many of the same Christian parents,
however, are not concerned about the teaching of evolution in
public schools. Falling SAT scores and increasing drug abuse,
violence, abortion, and homosexual activity among teens are the
concerns of these parents. Why the fuss about creation being
taught in public schools anyway they ask. As we shall show, there
is a fine line of reasoning which usually lies hidden when either
the subject of origins or morality is discussed, but which
actually ties the two concerns together. Once this reasoning is
understood it becomes evident that not only does the exclusive
teaching of evolution encourage our children's rejection of
Judeo-Christian morality, but it also prepares young minds for
the reception of religious views which these same parents would
find unacceptable."

Q. Before you explain the significance, you did
read "it's a fine line of reasoning." It didn't say "a fine
line," just "a line," so it's "a line of reasoning," so --

Q. Matt, I think there's another passage that Dr.
Forrest asked you to highlight.

A. "To understand how this can happen we must
recognize that there are two basic views of world and man, theism
and naturalism. These are philosophical categories, not
religious. They can also be called metaphysical positions, world
views, or idea systems. Philosopher or not, we all have such a
view. Theism and naturalism are mutually exclusive systems of
thought as can be seen from a single distinction. Theism affirms
a fundamental creatorcreature distinction, whereas naturalism
denies this distinction and defines total reality in terms of
this world."

A. That's very important because one of the most
common themes in creationism is the rejection of naturalism to
juxtapose it as the opposite of theism, and for that reason to
see evolution as inherently atheistic.

Q. If you could highlight another passage, Matt?
Could you read this into the record, please?

A. "That's why Christians, in fact all theists,
must insist that whenever origins are discussed, public schools
allow the teaching of the evidence for creation alongside
instruction in the naturalistic concept of evolution. If the
scientific rationale for both creation and evolution were taught
there would be an equality demanded by the symmetry of the two
metaphysical views, theism and naturalism. If both are not
taught, it is not just the subject of origin that is affected.
The whole of naturalistic thought is given privileged status by
the state, with the de facto result that young minds are prepared
to reject theistic approaches to morality and religion. At the
same time they are prepared to receive both moral relativism and
the various naturalistic religions such as unity, Buddhism,
Scientology, and religious humanism."

Q. Do you have an understanding based on this
passage why the authors are advocating the teaching of
creationism?

Q. I'll read that into the record. "Production of
supplemental textbook for biology is already complete. The
teachers are now using it in all 50 states. This book Of Pandas
and People is favorably influencing the way origins is taught in
thousands of public school classrooms." This is what Mr. Buell is
conveying to his fund raisers?

Q. Matt, could you go to the next highlighted
passage? And could you read that into the record? Go on to the
next page where this continues.

A. "Our commitment is to see the monopoly of
naturalistic curriculum in the schools broken. Presently, school
curriculum reflects a deep hostility to traditional Christian
views and values and indoctrinates students to this mindset
through subtle but persuasive arguments. This is not merely a war
over ideas, but over young people and how their lives will be
shaped. The current deplorable condition of our schools results
in large part from denying the dignity of man created in God's
image. Even junior high students recognize that if there is no
creator, as textbooks teach, then there is no law giver to whom
they must answer, and therefore no need of a moral lifestyle,
much less a respect for the life of their fellow man. The message
of the foundation is that this is simply unacceptable.

MR. ROTHSCHILD: I mean, I think based on her
overall review of the documents and the history of the writing of
Pandas I think Dr. Forrest can give some helpful conclusions
about that. I think the document does speak for itself
verywell.

A. Dr. Kenyon is a biophysicist who taught at San
Francisco State University. He's one of the co-authors of Pandas.
He's also a fellow of the Center for Science and Culture. He's a
member of the intelligent design movement. He also wrote sections
of young earth creationists books in the 1970's.

A. Percival Davis is the co-author of two earlier
books, both taking the young earth creationist view. He was the
co-author in 1967 with Wayne Frair of
The Case for Creation. He
was the co-author of the later edition of that book with Mr.
Frair, 1983, called A Case For Creation.

Q. Matt, could you pull up Exhibit . Is that the
cover page of A Case For Creation?

THE COURT: Do you want to expand on your objection
other than hearsay?

MR. MUISE: Again, Your Honor, it goes to -- you've
got a Bible science newsletter. There's, I mean the context for
this does not fit into what, you know, they're trying to claim
that this isn't science. Again they're relying on phil osophi cal
and theol ogi cal claims. This is specifically from a Bible
science newsletter.

MR. ROTHSCHILD: Your Honor, what we're trying to
demonstrate is that the book that is in the Dover school Of
Pandas and People is a creationist book, and we have various
forms of evidence, including that the authors and other editors
involved with the creation of that book are clear and explicit
creationists.

THE COURT: Is the author of this newsletter one
and the same with a co-author?

MR. ROTHSCHILD: Nancy Pearcey is, and I think Dr.
Forrest will testify, was involved with the creation of Pandas.
She's not listed as a named author, but is a contributing editor,
a reviewer of the book, and - -

MR. MUISE: And again, Your Honor, this is going
to, you're talking about a person's private religious beliefs
they're putting in a Bible of science newsletter.

THE COURT: We'll see whether it is. I understand
that objection. Your general objection to the document is
overruled, but you can interpose more clinical objections as we
get into the parts of the newsletter other than the highlighted
part, which is where we are now. So the objection to the
newsletter generally is overruled. The objection to this
highlighted passage is overruled.

Q. Dr. Forrest, I'm handing you what we marked as
P-li, which is the 1993 version of Of Pandas and People, and I'm
turning your attention to the page little Roman numeral III,
which includes acknowledgments, and is Nancy Pearcey mentioned on
that page?

A. First, the inspection of the content of the
1993 edition contains references to a creator. There is a
reference to a master intellect. There is a reference to an
intelligent designer who shapes living forms out of clay for
example, and other such things. You have the usual creationist's
criticisms of evolutionary theory. In addition to the content of
the book itself the earlier drafts of Pandas are written in the
language of creationism using that term.

Q. And how did you, how did those come into your
possession so you could review them?

A. Those were among the materials that FTE
supplied under subpoena to the legal team, and the legal team
provided them to me.

Q. I'm going to ask you now to look at several
documents and ask you to confirm whether these were in fact
drafts of Pandas that you reviewed in order to prepare your
supplemental report and your testimony today. Matt, could you
start by pulling up Exhibit P-563? Do you recognize this
document?

MR. MUISE: If you have writing on the document,
Your Honor, that's hearsay upon hearsay.

THE COURT: It doesn't go to the truth. She's
saying there's writing on the document.

MR. MUISE: I believe she was going to testify
that's how she determined the apparent age of this particular
document. So she obviously had to rely on the truth of that.

MR. ROTHSCHILD: Your Honor, she relied on both the
handwriting and what I think she is describing something in
typewriting. Those are the only date markings on the document.
That's how she was able to make a judgment about whether that is
in fact the date. It's not essential to our proof, Your Honor,
but I don't think there's anything --

Q. Matt, could you pull up Exhibit P-560. And this
is, as many of these documents has what looks like an envelope
page or a folder page on it, but if you could go to the next
page, Matt? Do you recognize this document?

A. Yes, this document is a later draft entitled
Biology and Creation by Dean H. Kenyon, P. William Davis, who was
Percival Davis. It's copyrighted 1986 by The Foundation for
Thought and Ethics.

MR. MUISE: Again, Your Honor, we'd object to the
admission or use of this document in testimony on the basis of
hearsay.

MR. ROTHSCHILD: We served a subpoena on The
Foundation for Thought and Ethics, and the documents were
produced in response to that subpoena. A number of these drafts
were shown to Mr. Buell, who confirmed that they are in fact
drafts of what became Pandas. We also have other evidence that
demonstrates that that is the case, and that's how Dr. Forrest
received it.

THE COURT: Specifically on the point of whether or
not Buell disavowed any of this writing, do you have anything to
say about that?

MR. MUISE: I'm not aware of him disavowing the
writing. I'm not sure whose signature is on the, "Sincerely
Yours," whose hand this letter is actually from.

THE COURT: Unless you have some basis to tell me
that he disavowed what's on here or that this is not the document
as it was turned over in discovery, then I would be inclined to
overrule the objection.

MR. MUISE: It still doesn't affect the hearsay
objection, Your Honor, whether he acknowledges it's the document
or not, and I understand you've been overruling the objections to
hearsay, but I'm making an objection for the record we believe
this document - -

THE COURT: Well, there's a reliability aspect that
I'm considering. I think it is technically hearsay. The hearsay
objection more doesn't help me under 703. I think the purpose of
this type of torturous, albeit necessary, analysis is to give you
the opportunity to do exactly what we're doing. And so on that
basis I'll overrule the objection. You may proceed.

Q. Three of the documents that we looked at,
Biology and Origins and two drafts of Of Pandas and People have
the copyright date 1987 on them. Were you able to by examining
the documents determine when in 1987 they would have been
created?

A. There were two 1987 drafts in which in the
introduction to teachers the June 19th, 1987
Edwards decision was
referred to in a footnote. In an earlier draft in that
introduction that footnote is missing. There's no reference to
Edwards, indicating that that was done before Edwards. The other
two 1987 drafts were done after the Edwards decision.

Q. And is it correct that it's Biology and Origins
that doesn't have the reference to Edwards, and the two Pandas
drafts titled Pandas - -

Q. Matt, could you go back to the timeline? And
could you place Biology and Creation, Biology and Origins, and
the two Pandas drafts on the timeline? Thank you. Did you compare
the drafts of Pandas to the published versions?

Q. And could you read what you're referring to as
the definition in the draft Biology and Creation?

A. Yes, this is a definition of creation.
"Creation means that the various forms of life began abruptly
through the agency of an intelligent creator with their
distinctive features already intact. Fish with fins and scales,
birds with feathers, beaks, and wings, etc."

A. Yes, there's a term for this. Abrupt
appearance, or special creation.

Q. Matt, could you now pull up Biology and
Origins, P-1? And including the highlighted text on page 213, and
I'm not going to ask you, you'd have to do a lot of reading, I
won't ask you to do this, is this the same definition we just saw
in Biology and Creation, creation means various forms of life
began abruptly?

Q. Matt, could you now go to P-562, which is one
of the draft titles of Of Pandas and People and go to pages 2-14
through 15 where the definitions are depicted? And is it the case
that in this draft titled Pandas we still have this definition,
creation means that various forms of life began abruptly?

A. "Intelligent design means that various forms of
life began abruptly through an intelligent agency, with their
distinctive features already intact. Fish with fins and scales,
birds with feathers, beaks, wings, etc."

Q. And Matt, could you pull up P-6? This is the
first published version of Pandas?

Q. "Intelligent design means that various forms of
life began abruptly through an intelligent agency with their
distinctive features already intact. Fish with fins and scales,
birds with feathers, beaks, and wings, etc." And then if you
could pull up P-1l, and go to page 99? Same definition as used
there for intelligent design?

Q. And we couldn't get all the versions up there,
but we have Biology and Creation, Biology and Origins, and the
first of the two Pandas drafts, and then the final published
version as being used in Dover, and the only substitution is
intelligent design for creation and intelligent agency for
intelligent creator?

Q. Was the substitution of intelligent design for
creation in the definitions section the only incident where
intelligent design was substituted for creation from the drafts
to what was ultimately published?

Q. Matt, could you pull up the first slide of the
exhibit? And I'm going to ask you what this depicts, but first
could you explain how this graph was created?

A. This graph was created based on a word count of
the word, a count of the number of times the word "creation" was
used, the number of times the word "design" was used. The counts
were conducted on
ASCII files on the raw text of the draft.

A. The graph depicts the number of times these
word were used in the various drafts. For example, on the
left-hand side you can see the in Creation Biology, 1983, the
term "creation" was used right about 150 times. The word "design"
was used about 50 times, and so the red line marks the number of
times the word "creation" occurs in the drafts. The blue line
marks the number of times the term "design" is included in the
drafts. What you see in version 1, 1987, in that draft of Pandas
you see that subsequent to that version there is an abrupt
decline in the number of times the word "creation" is used, and
you can see that in version 2 it's used less than 50 times in
Pandas 1987 version 2, whereas in Pandas 1987 version 2 the
number of uses of the word "design" rises steeply to somewhere
between 250 and 300 times.

Q. I noticed that in the earlier versions where
"creation" is still being used quite a bit you do have also
fairly significant use of the word "design." Do you draw any
conclusions based on that?

A. Yes. The conclusion is that they are being used
interchangeably. They're virtually synonymous.

Q. Matt, could you pull up the next slide? And
this is isn't terribly different, but why didn't you describe
what this depicts?

A. It's a bit broader search. You'll notice that
the word "creation" has an ending, it has an "-is" ending. That
is so that the counter will pick up any cognate of that word,
creationist or creationism, that both will be counted, and here
we're looking for the term "intelligent design" rather than just
"design." What this indicates is that you see the same thing in
these drafts. In the early drafts you see the use of the term
"creationism" and its various cognates. Not very much use at all
of the term "intelligent design." In fact, in Creation Biology
it's zero times. And then subsequent to the version 1 of Pandas
1987 you see a steep decline in the use of the term "creation"
and its various cognates, and you see a very sharp rise in the
use of the term "intelligent design" in that second version of
Pandas of 1987.

Q. And based on your review do you see the change
happening after the Edwards decision?

A. It's an agricultural publishing firm. They do
not employ science writers, or at that time did not employ
science writers or science editors.

Q. Matt, could you go to the second page of the
document? And I asked you to highlight in that, the third
paragraph, it says here, Our manuscript is entitled Biology and
Origins." That was a working title for Pandas as we saw it in the
earlier draft?

Q. And now could you go back to the first page of
the document, Matt? And could you illuminate the passages that
Dr. Forrest asked you to highlight? And could you read that into
the record, Dr. Forrest?

A. "In ruling on the so-called Louisiana Balance
Treatment acts, this spring the U.S. Supreme Court may not affirm
state mandated teaching of creation, but they will almost
certainly let stand the above academic freedom for teachers."

Q. Do you have an understanding of what case Mr.
Buell is referring to here?

Q. And if you could go to the next highlighted
passage, Matt? Could you read this into the record?

A. "The enclosed projection showing revenues of
over 6.5 million in five years are based upon modest expectations
for the market, provided the U.S. Supreme Court does not uphold
the Louisiana Balanced Treatment acts. If by chance it should
uphold it, then you can throw out these projections. The
nationwide market would be explosive."

A. No. Actually they recognize the young earth
view, the old earth view, and although the preference is clearly
for the old earth view, they treat the young earth view
respectfully as a scientific position which just simply needs
more research.

Q. I'd like you to look at one exhibit I think
provides an example of that. Can you pull up P-555? This is what
you called the summary chapter 1 of the drafts that Mr. Buell was
provided by the foundation?

Q. And Matt, could you turn to page 22 of the
document and highlight the first passage? Could you read this
into the record, Dr. Forrest?

A. "The standard evolutionary interpretation is
that rock strata around the world were laid down over several
million years. Thus, they document a time sequence. Organisms
that appear as fossils in lower strata lived earlier than those
in higher strata."

Q. And is this your understanding of the sort of
the standard evolutionary interpretation?

Q. Could you go to the next passage, please, and
could you read that into the record, continuing on to the next
page?

A. "Among creationists there is considerable
skepticism regarding this traditional interpretation. Three major
alternative interpretations are found in creationist literature.
One, old earth creation. Some creationists accept the same time
sequence in the rocks as evolutionists do, but they draw a
different conclusion. They propose that at various times
throughout the history of the earth an intelligent agent stepped
into the course of natural history to create a new type
oflivingthing."

Q. Before you go on, Dr. Forrest, at this time as
of the writing of this draft were they still using the term
"creation" for the central concept of the book?

A. In Pandas, and I'm speaking of the 1993 version
that I looked at, in Pandas all of these views are subsumed under
the grouping of design. They're referred to as design proponents.
There is some indication that there's a preference for the old
earth view and that the young earth, that other design proponents
prefer to condense the history, the age of the earth into
thousands of years.

Q. Based on your reading about the intelligent
design movement, including these drafts but also more widely, do
you find this treatment of the various arguments for the age of
the earth to be important?

A. They're important because it indicates that the
young earth view is considered a scientific view, which they
believe creation science to be, and that they are treating it
respectfully and consider it a part of creation science.

Q. I think you said during the qualifications
stage of this, of your testimony, that intelligent design
proponents in fact have called themselves creationists. Is that
right?

THE COURT: Well now, this might be somewhat
different. You said, Mr. Rothschild, in your question that the
author of this was affiliated at one time with The Foundation for
Thought and Ethics, is that correct?

THE COURT: Or in answer to a question that was
stated. Standing out there and unconnected to either FTE or
directly linked to Pandas there's a danger that we're going to
get afield here. So there may be another basis for the objection.
A proponent of intelligent design and that proponent's beliefs,
if not tied up some place, I think could be objectionable.

MR. ROTHSCHILD: Your Honor, I think Dr. Forrest
testified, and she'll correct me if I'm wrong, that Mr. Hartwig
is familiar with the, affiliated with the Discovery Institute,
which is obviously a central player in this movement, and I'll
warn you in advance that the next document we're going to look at
was written by
Paul Nelson, another member of the Discovery
Institute, very active, and both of them give a historical
summary of certain aspects, some of the history of the
intelligent design movement.

I mean, you'll recall Mr. Muise admonished Dr.
Forrest for not having looked at the so what document written
after her book, and I think she suggested in reaction to her
book. These are two people writing as insiders of this Wedge
movement and the Discovery Institute about how this came about
and who these people are. So I think it's extremely relevant.
It's exactly what someone studying the history of the intelligent
design movement would look at as a primary source for how this
movement was created.

A. "Today a new breed of young evangelical
scholars is challenging those Darwinist assumptions. They argue
that intelligent design is not only scientific, but is also the
most reasonable explanation for the origin of living things,
and they are gaining a hearing."

A. Evangelical refers to a particular position in
Christianity in which the adherents believe themselves to have
the responsibility of evangelizing, of carrying out what they
consider to be the great commission to carry the gospel around
the globe.

MR. MUISE: Your Honor, objection. She testified
that she is has no expertise on religion, and here she is now
expounding on carrying religious affiliation, the dogmas of a
particular group.

MR. ROTHSCHILD: Your Honor, I think based on both
her education, what she teaches, and what she's written about,
while she certainly I don't think would describe herself as a
theologian like Jack Haught, these are the kind of terms that
people in her field would work with every day and she's certainly
worked with as part of her research and writing.

THE COURT: To the extent that the question is
answered I didn't find the answer to be objectionable, so we
won't strike it. So the objection is overruled as it relates to
that answer, that question and that answer.

Q. And we'll go to another passage when that
occurs and I won't ask you to do that by memory. Matt, could you
go to the next highlighted passage? And could you read this
passage into the record?

A. "In March 1992 a landmark symposium took place
at Southern Methodist University
in Dallas.
Phillip Johnson,
Steven Meyer,
William Dembski,
Michael Behe, and other Christian
schol ars squared off against several prominent Darwinists. The
topic was Darwinism science, or philosophy. The remarkable thing
about the symposium was the collegial spirit that prevailed.
Creationists and evolutionists met as equals to discuss serious
intellectual questions. Not surprisingly, few issues were
resolved, but in today's Darwinist climate, where dissent is
frequently written off as religious bias, just getting the issues
on the table was an accomplishment."

Q. And are the individuals named there, are those
the evangelical scholars in the intelligent design movement that
Mr. Hartwig was referring to?

Q. I think there's one more passage that we have
highlighted in there.

A. "Creationists are still far from winning, but
they believe things are getting better. As Johnson points out,
creationist arguments are growing more sophisticated, while more
Darwinists are still responding with cliche. Now it's the
creationists who come across as asking the hard questions and
demanding fair debate."

Q. Again when he's referring to creationists, he's
referring to those individuals?

Q. And Your Honor will probably be happy to hear,
I'm not going to ask Dr. Forrest to read every one of those
statements. We're happy to make them available to you as part of
the record, but I'm going to ask her lust to talk about the topic
and key points within those statements. So why don't you start
with this first comment, argument, or theme, relection of
naturalism?

A. The first ones comes from 1974, it's again
Henry Morris, a well known young earth creationist, and he is
relecting naturalism as an explanation. This is typical in
creationism to relect naturalistic explanations. Dr. Kenyon in
1986 in his affidavit also relects the, or does not accept the
claim that there is a naturalistic origin of life. In 1998 you
see Dr. Dembski in a book called
Mere Creation relecting
naturalism, distinguishing it from creation, and it's clear here
that he rejects it for religious reasons because he says that,
"As Christians we know naturalism is false. Nature is not
sufficient," and this is very common throughout creationism.

Q. And based on your reading of creationist
intelligent design work, what's the alternative to the naturalism
that they're relecting?

A. There's only one alternative to a natural
explanation, and that's a supernatural explanation.

Q. Could you go to the next page of the chart? And
Your Honor, after we're through with this exhibit if you'd like
to take a lunch break, that would be a good time.

A. This is also a very common theme. Here you see
Mr. Morris in 1974 charging evolution with tending to rob life of
meaning and purpose, and I might point out that Phillip Johnson
actually goes a little farther and says it does rob life of its
meaning and purpose. The second quote is from Duane Frair and
Percival Davis, who are the co-authors of Pandas, and this comes
from their book 1983,
A Case For Creation. They also regard this
doctrine of evolution dangerous to society. The third quote comes
from the Wedge Strategy document itself and makes the same point,
that Darwin portrays human beings not as moral beings but as
animals and machines, and what this does is to undermine human
moral freedom and moral standards.

Q. And we'll talk more about that document later,
but why don't we go to the next slide?

A. The next slide is about abrupt appearance. This
is where life forms appear in the history of earth fully formed.
In 4 in Henry Morris's book
Scientific Creationism he makes that
point with the animals appearing suddenly with no transition of,
no evidence of earlier life forms. In
Dr. Kenyon's affidavit he
says the same thing, you see abrupt appearance of animals in
complex form, and in Mr. Kenyon and Percival Davis' book Of
Pandas and People, 1993, of course there's the definition of
intelligent design as the abrupt appearance of fully formed
animals that we talked about earlier.

A. This one is about gaps in the fossil record,
focusing specifically on the
Cambrian explosion. This is a very
frequently used target of criticism in evolution theory about the
Cambrian fossil. Henry Morris in 1974 pointed out that there's a
gap between the one celled microorganisms and the invertebrate
phyla of the Cambrian period. I'll repeat that for you. Henry
Morris in 1974 points out that there is a very large gap between
one celled microorganisms and the mini invertebrate phyla of the
Cambrian period, that species appear in the fossil record with no
apparent precursors, which he calls no incipient forms leading up
to them, and he doesn't anticipate, he forecloses any possibility
that further fossil collecting will fill in these gaps. In the
next item, this is from Duane Frair and Percival Davis, again
from their 1983 book, they're also pointing to what they consider
to be gaps in the fossil record, and they attribute these gaps,
they explain these gaps, these abrupt things as special activity
of God. They believe that that's a reasonable explanation for
these gaps in the pre-Cambrian fossil record. The third item of
the quote comes from a paper published by Dr. Stephen Meyer in
2004, and he is also making the same criticisms in regard to the
record of the Cambrian fossil record. He says that this record
implies the absence of clear transitional forms that would
connect the Cambrian animals to earlier animals, and likewise he
suggests that these gaps are not going to be filled in by simply
collecting more fossils, gathering more samples.

Q. Dr. Forrest, based on this morning I'm not
going to dare to qualify you as a paleontologist, and we will
hear from one later on, but can you tell me whether Henry Morris
is a paleontologist?

A. No, he's not a paleontologist. I believe he's a
hydraulics engineer.

Q. Thank you. We can go to the next slide.
Supernatural design and biochemical complexity. Tell us about
those connections.

A. Yes, with regard to the supernatural design of
biochemical complexities, the general comment in these that
unites them is that the complexity of DNA for example simply is
not possible through natural processes, that it requires input
from outside by a supernatural creator. Henry Morris points this
out, he says that the complex systems such as the DNA molecules
are not the products of chance. You need a great creator for
that. And
Dr. Kenyon's 1986 affidavit, you see him pointing out that
biomolecular systems require, these complex systems that he's
talking about require intelligent design. This has to be put in
from the outside, from out, and he's talking here about outside
the system of nature. And then a quote from Dr. Behe's book
Darwin's Black Box, he also rejects the idea that there is a
natural process that could produce biochemical complexity. In
fact, if you will look, if you will note he refers to this
process as a phantom process, which suggests that he doesn't
actually see a natural process that can produce this type of
complexity.

Q. So this argument from biochemical complexity to
a supernatural creator, that's not new to Mr. Behe?

A. No, it's not new at all, and again I point out
that that's the only conceptual alternative to a natural
explanation. If you reject the idea that natural processes could
do this, you are of course endorsing the supernatural
explanation.

Q. Could you go to the next slide, Matt? This is
the heading, "Teach the controversy, alternative theories,
strengths and weaknesses of evolution." Tell us what this is
about.

A. Yes, the intelligent design movement uses very
frequently the argument that children should be taught the
controversy, that there's a controversy within science itself
about the status of evolution, and I really would like to begin
with the more recent quotes, because what they mean by teaching
the controversy, and these are encapsulated in this quote, both
of them, is that children should be taught about intelligent
design as an alternative theory to evolution, and that children
should be taught the strengths and weaknesses of evolution, and
all of these are mentioned in a quote by Dr. Meyer and
John Angus Campbell, who is also a fellow for the Center for Science and
Culture in March of this year endorsing this position. If you
look back in 1973,
Duane Gish, who is also another very well
known young earth creationist, is essentially saying the same
thing. In fact, he says that students should be made aware of the
weaknesses of evolution, and he considers teaching them only
evolution to be a form of indoctrination. In 1986 you see Dr.
Kenyon make the same observation and actually using the term
indoctrination. He believes that alternative views, by which he
means creation science, should be presented in public school
science classes. So this is also a very common theme. It's not
new at all. It also includes the argument that students should be
taught the evidence against evolution.

Q. So when we hear these arguments in relation to
intelligent design, it's right out of the creationists'
playbook?

MR. ROTHSCHILD: Your Honor, I think we're done
with this set of slides, and we can take a break here if that's
your preference.

THE COURT: All right. Let's do this at this
luncture, and we will be in recess then until 1:30. That should
give everybody an ample lunch break. We'll reconvene and pick up
this witness's testimony at 1:30 this afternoon.